JUSTICE (RTD.) MUNAWAR ALI KHAN (CHAIRMAN).-The appellant, Miss Farhat Sadiq was working as a Staff Nurse in the Civil Hospital, Karachi, when by the order dated 30th January, 1991, of the Secretary, Health Department, Govt, of Sind, her services were dispensed with. The said order was passed in the wake of departmental proceedings taken against the appellant under the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred as the said Rules. To begin with she was first served with a show-cause notice dated 28th October, 1989, wherein it was alleged that she had taken Miss Shahnaz Sardar, Nursing student of 2nd year to Room No. 37, of the Paying Ward of the Hospital on the pretext of giving injection to the patient but instead rape was committed on her in the said room and that the appellant failed to report the incident to any responsible official. The appellant's reply to the said notice was found unsatisfactory, and she was ultimately served with final show-cause notice dated 13th September, 1990 to which the appellant submitted her reply on lst October, 1990. She was also given personal hearing and finally the above order of termination of her services was passed. She challenged the said order in departmental appeal filed before the Chief Secretary and after waiting for 90 days for decision thereon, she came to this Tribunal in the present appeal filed on 17-3- 1991.
2. We heard Mr. Mushtaq Memon on behalf of the appellant and Mr. Habib Rashid for the respondents. We also went through the relevant record and the authorities cited of the bar.
3. It was submitted by the appellant's learned counsel that the allegations made against the appellant were vague and were never proved through a regular enquiry. According to him the enquiry mentioned in the written statement was held in absence of the appellant who had therefore no opportunity to put in her defence. He further stated that even the material collected during the said enquiry including the affidavits of the witnesses examined in course of the enquiry were never supplied to the appellant, alongwith the show-cause notice. The learned counsel also raised serious objection to dispensation of the enquiry for which the Authorized Officer had assigned no cogent reason. His contention was that in the parallel court proceedings the prosecution failed to establish the charge of abetment of the rape committed on the student nurse, as the appellant was honourably acquitted by the Federal Shariat Court. The learned counsel expressed the view that since the charge of misconduct for which the appellant has been punished in the departmental proceedings was nothing but the same charge which formed the subject matter of the criminal case, its failure in the Federal Shariat Court would automatically entitle the appellant to her exoneration even in the present proceedings. The appellant's learned counsel cited the precedent case of Punjab Service Tribunal reported as 1984 PLC (CS) 1121 in support of his arguments that appellant who had not been provided sufficient opportunity to defend her case, could not be condemned unheard. In reply to the above arguments, the learned Govt, counsel did not seriously contest the said arguments.
4. As mentioned in the impugned order, it was passed in exercise of the powers conferred by clause (b) of sub-rule (4) of rule 5 of the said rules, which is reproduced as under: "5. Inquiry procedure-The following procedure shall be observed when a civil servant is proceeded against under these rules:- 1..............
2..............
3..............
4. On receipt of the report -of the Inquiry Officer or Inquiry . Committee or where no such officer or committee is appointed, on receipt of the explanation of the accused, if any, the authorized officer shall determine whether the charge has been proved and-
(a) ...........
(b) If it is proposed to impose a major penalty he shall forward the case to the authority alongwith the charge and statement of allegations served on the accused, the explanation of the accused, the findings of the Inquiry officer or Inquiry Committee, if appointed and his own recommendations regarding the penalty to be imposed, and the authority shall pass orders as it may deem proper."
5. The question arose if the requirements bf the above rules were fulfilled before the appellant was visited with the punishment. It appears that the main requirement to be satisfied was that if inquiry was held, on receipt of the inquiry report or if no such inquiry had taken place on receipt of the explanation of the accused, if any, the Authorized Officer had to determine if the charges made against the appellant were proved and it was after such determination that he was required to give his attention to the next question of the nature of the penalty to be imposed upon the appellant. No doubt the written statement, vide the para immediately following the caption "Brief Facts", indicates as if the enquiry had been held and it was in the light of the findings arrived at in the said enquiry, that the appellant amongst other employees of the Hospital was served with show-cause notice which ultimately led to the termination of her senders. This has however been controverted by the language of the First Show-cause notice dated 28th October, 1989. In clause
(b) of para 1 of the said notice it is mentioned "(b) have decided that it is not necessary to have enquiry conducted through an Enquiry Officer or Enquiry Committee.". Moreover in the appellant's case the Medical Superintendent of the Civil Hospital being her immediate boss was admittedly the Authorized Officer and Secretary, Health Department who was one step above him was the Authority for the purpose of exercising power under the said rules. But the enquiry referred to above was ordered by the Chief Secretary and so also enquiry officer was appointed by him. It was not disputed that the said enquiry was held in absence of the appellant who, as rightly pointed out by her learned counsel, had therefore no opportunity to cross-examine the witnesses produced in the enquiry. In fact as required by the said rules, no charge sheet or statement of allegations was ever served on the appellant before the above said enquiry. However, she was given only the show- cause notice for the first the. The said notice was also conspicuously silent with regard to the enquiry referred in the written statement. Accordingly, we have no doubt in our mind that regular enquiry as envisaged by the said rules was never held. The enquiry mentioned in the written statement was clearly in the nature of preliminary enquiry. Therefore the evidence collected during such enquiry could not be used against the appellant nor could it be made bases for her punishment because the appellant was admittedly not associated with the said enquiry. Even the material collected during the aforesaid preliminary enquiry was not supplied to, the appellant simultaneously with serving of the show-cause notice on her or even subsequently. This was necessary to enable the appellant to prepare her defence properly. Instead she had been kept totally in the dark, so far preliminary enquiry was concerned. As such the appellant was not provided with sufficient reasonable opportunity to arrange for her defence against the charges levelled at her.
6. The next point that we have to consider was whether the charges made against the appellant were proved. As pointed out above it was for the Authorized Officer to determine about the proof or otherwise of the charges. In this particular case in which no full-dress enquiry was held, the Authorized Officer was obviously required to make such determination on receipt of the appellant's explanation. Although the appellant's learned counsel stated at the bar that in view of the pendency of the criminal case against the appellant, she did not furnish her explanation, yet the impugned order is clear on the point that the appellant had filed her explanation but it was found un-satisfactory. However, the explanation is missing from the case file as neither of the parties has produced it. In absence of her explanation it was rather difficult to ascertain her plea with regard to the charges made against her. Despite this, it is amply clear from other documents available on record that the appellant has made categorical denial of the charges. Her version appears to be that during the incident not only student nurse but she too was subjected to rape. In any case if the preliminary enquiry referred to above and the evidence collected during that enquiry was excluded from consideration, the Authorized Officer was left with only show-cause notice and the appellant's explanation (if at all furnished by her) for the purpose determining if the charges made against the appellant were proved or not. The show-cause notice obviously contained the charges and the appellant's explanation, if any, carried her denial of the charges. We are at less to understand how the Authorized Officer on the basis of the above two documents would come to the conclusion that the charges had been established against the appellant. We are therefore of the view that the punishment was inflicted on the appellant without first ensuring that the charges made against her were proved in accordance with the relevant rules.
7. In the case like the present one, we may have remanded it for fresh hearing. But our attention was invited tp the judgement dated 24-3-1992 of the Federal Shariat Court whereby the appellant was honourably acquitted of the same charge namely abetment of rape committed on the student nurse, Shahnaz Sardar. On careful perusal of the judgement it would reveal that the appellant had faced trial in the criminal court on several charges including the aforementioned charges. Although she was convicted by the lower court, yet her appeal against the said Court's decision was accepted by the Federal Shariat Court and she was honourably acquitted of all the charges. It may be pertinent to refer to the relevant portion of the judgement as under:- "This I accept her appeal, set aside her conviction and sentences awarded by the learned trial Judge on 2-2-1992 and acquit her of the charges honourably. She be set at liberty forth with if not required in any other case."
8. The above decision was inter alia based on concession made by the learned Additional Advocate General who had appeared for the State. This has been taken note of in para 10 of the judgment in the following words:- The learned Additional Advocate General candidly conceded that the prosecution has miserably failed to prove charge against the appellant, hence the conviction and sentences awarded to the appellant are bad in law and on facts".
Thus even the Law Officer appearing for the State did not support the production case which, in his opinion, the persecution has miserably failed to prove.
10. For afore-going reasons appeal is allowed and the impugned order is set aside.
11. Given under our hands and the seal of this. Tribunal on this 25th day of June, 1992 at Karachi.